Tort Law - Res Ipsa Loquitur in Medical Malpractice Actions: Mireles v. Broderick

Actions: Mireles v. Broderick 1. 113 N.M. 459, 827 P.2d 847 (Ct.App.1992).The New Mexico Supreme Court granted certiorari on February 27, 1992.As of this writing, no decision has been made by the supreme court.2. Id. at 465, 827 P.2d at 853.Judge Hartz, writing for the majority, left the question of when, if ever, res ipsa loquitur is applicable in a medical malpractice case.Judge Hartz did suggest that "the uniform instruction [on res ipsa loquitur] would need to be revamped if res ipsa doctrine were to be used in medical malpractice cases."Id.However, see Schmidt v.St. Joseph's Hosp., 105 N.M. 681, 736 P.2d 135 (Ct.App.1987), wherein the court stated that "[allthough res ipsa loquitur may apply to medical malpractice actions as one form of circumstantial evidence, the doctrine does not relieve plaintiff from making a prima facie case."Id. at 683, 736 P.2d at 137.This comment was made in the context of reviewing the appropriateness of a summary judgment.See also Smith v. Klebanoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.), cert.denied, 84 N.M. 37, 499 P.2d 355 (1972), wherein the court stated that "New Mexico decisions discussing res ipsa loquitur in malpractice cases have not applied the doctrine.These decisions have not held the doctrine could not be applied in an appropriate case.Rather, the decisions are to the effect that facts for application of the doctrine were lacking."Id. at 55, 499 P.2d at 373 (citations omitted).Both Schmidt and Smith fail to decide directly whether res ipsa loquitur is applicable in a medical malpractice action in New Mexico.3. Mireles, 113 N.M. at 464, 827 P.2d at 852. 4. Id. 5. Id. 6.This Note will be limited to a discussion of the type of evidence that may be offered in support of res ipsa loquitur in medical malpractice cases and the use of expert testimony in these cases.Although the use of expert testimony was not discussed in the majority opinion, it was discussed in a dissent written by Judge Pickard.Id. at 470, 827 P.2d at 858 (Pickard, J., dissenting).